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Monday, November 10, 2014

Many
municipalities impound vehicles pursuant to Section 11-208.7 of the Illinois
Motor Vehicle Code. That statute establishes a process for the towing and
impoundment of vehicles operated in violation of certain statutes. It also allows a municipality to charge a fee for release of an impounded vehicle.

In Hayenga, Rockford police pulled over Hayenga's boyfriend, who was driving her car. After the police found drug paraphernalia in the vehicle, it towed and impounded the vehicle. Hayenga appealed the impoundment, but an administrative hearing officer upheld the City's action. On appeal to the circuit court, the court found that the City (a non-home rule municipality) did not have authority to impound Hayenga's vehicle under Section 11-208.7. The appellate court agreed, finding that nothing in Section 11-208.7 provides express authority for municipalities to impound vehicles. Instead, the court noted that the statute (reprinted in part below) provides municipalities with authority to charge fees for the release of "properly impounded vehicles," but not a separate grant of authority to impound.

(a) Any municipality may, consistent with this Section, provide by ordinance
procedures for the release of properly impounded vehicles and for the
imposition of a reasonable administrative fee related to its administrative and
processing costs associated with the investigation, arrest, and detention of an
offender, or the removal, impoundment, storage, and release of the vehicle. The
administrative fee imposed by the municipality may be in addition to any fees
charged for the towing and storage of an impounded vehicle. The administrative
fee shall be waived by the municipality upon verifiable proof that the vehicle
was stolen at the time the vehicle was impounded...

The court also rejected
the City's arguments that other statutory provisions authorized the City to
impound the vehicle because the City failed to make those arguments at the
administrative hearing.

Based on the Hayenga decision,
therefore, a municipality cannot rely on Section 11-208.7 in order to seize a
vehicle. It must have other authority for the seizure. There are a
variety of statutes that might provide a municipality with impoundment
authority, including the following:

720 ILCS 5/36-1. Seizure and
forfeiture of a vehicle used with knowledge and consent of the owner in
the commission of certain listed offenses.

720 ILCS 5/36.5-5. Vehicle used
in the commission of certain listed sex offenses.

625 ILCS 5/4-203 (E). Police
may tow the vehicle of a driver arrested for a DUI if it is likely the
driver will upon release commit a subsequent violation.

625 ILCS 5/11-1302.
Allows the towing of vehicles obstructing the highway or creating a hazard
due to location on the highway, any stolen vehicle, an unregistered
vehicle or “when a person driving a vehicle is arrested for an alleged
offense for which the officer is required by law to take the person
arrested before a proper magistrate without unnecessary delay.”

625 ILCS 5/6-303 (E). Driving
without proof of insurance while a driver’s license is suspended or
revoked.

In addition to these
statutes, municipalities might rely on their authority to declare and abate
public nuisances. 65 ILCS 5/11-60-2. For example, the Town of Normal
Municipal Code declares that the "use of motor vehicles in certain
criminal and traffic offenses is hereby declared a public nuisance...are
declared contraband and subject to seizure and impoundment."

Even with express
statutory authority, however, any municipal tow or impoundment is subject to
constitutional analysis to ensure that the municipal action does not violate
the Fourth Amendment. Cases allow a municipality to lawfully seize and
impound a vehicle under the following three circumstances:

pursuant to a warrant.

without a warrant if based
on probable cause that the vehicle contains evidence of a crime or was
used in the commission of a crime.

without a warrant if based on
the police community caretaking function (vehicle obstructs traffic,
constitutes a hazard, or is in a public location and detrimental to public
health or safety).

Illinois municipalities may need to review their current codes and
ordinances to ensure that they are consistent with the recent ruling in the Hayenga case.